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###### Department of Transportation

###### Office of the Secretary 

          - 14 CFR Parts 234, 253, 259, and 399 
          - [Docket No. DOT-OST-2007-0022] 
          - RIN No. 2105-AD72 

# AGENCY:

Office of the Secretary (OST), Department of Transportation (DOT). 

# ACTION:

Clarification Concerning Advance Notice of Proposed Rulemaking (ANPRM). 

# SUMMARY:

On November 20, 2007, the Department of Transportation (DOT or Department) published an Advance Notice of Proposed Rulemaking (ANPRM), 72 FR 65233 seeking comments on whether the Department should adopt a rule to enhance airline passenger protections in the following ways: Require carriers to adopt contingency plans for lengthy tarmac delays and incorporate them in their contracts of carriage, require carriers to respond to consumer problems, deem operating a chronically delayed flight to be unfair and deceptive, require carriers to publish delay data, require carriers to publish complaint data, require on-time performance reporting for international flights, and require carriers to audit their compliance with their customer service plans. 

In a section of the ANPRM entitled “Regulatory Notices” the Department addressed a number of general regulatory issues as they relate to the ANPRM, including DOT Regulatory Policies and Procedures, Federalism, the Regulatory Flexibility Act and the Paperwork Reduction Act. In its discussion of Executive Order 13132 (“Federalism”), which sets forth certain requirements for Federal agencies when they are “taking action that preempts State law,” the ANPRM concluded that it “does not propose any regulation that * * * preempts State law.” Based upon comments DOT has received, and upon its own further review, the Department has determined that this statement has been misconstrued in the overall context of the proposed DOT regulation and its impact upon State law. This notice clarifies the Department's prior statement concerning preemption in this area. 

# DATES:

Comments on the ANPRM were due to be filed on or before January 22, 2008. The Department is currently reviewing comments that it has received. The Department will further address this issue in any Notice of Proposed Rulemaking subsequently issued by the Department in this docket. 

*Docket:*                         For access to the docket to read background documents or comments received, go to                         *http://www.regulations.gov*                         or to the street address listed above. Follow the online instructions for accessing the docket.                     

# FOR FURTHER INFORMATION CONTACT:

                        Betsy L. Wolf or Blane A. Workie, Office of the Assistant General Counsel for Aviation Enforcement and Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave., SE., Washington, DC 20590, 202-366-9342, 202-366-7152 (fax),                         *betsy.wolf@dot.gov*                         or                         *blane.workie@dot.gov*                         (e-mail).                     

# SUPPLEMENTARY INFORMATION:

The Department's ANPRM sought comment on a variety of DOT proposals, including: 

(1) Amending 14 CFR part 253 to require any certificated or commuter air carrier that operates domestic scheduled passenger service using any aircraft with more than 30 passenger seats to develop a contingency plan for long ground delays on the tarmac for all of its flights (including those that use aircraft with 30 or fewer seats) and to incorporate this plan in its contract of carriage; 

(2) Adopting a new regulation, 14 CFR Part 259, that among other things would require every certificated and commuter carrier that operates domestic scheduled passenger service using any aircraft with more than 30 passenger seats to respond to mounting consumer problems in a number of specific ways; 

(3) Amending 14 CFR 399.81 so that it sets forth the Department's enforcement posture on chronically delayed flights; 

                    (4) Amending 14 CFR 234.11 to require airlines that report on-time performance to the Department pursuant to 14 CFR part 234 (                    *i.e.*, certificated U.S. carriers that account for at least 1% of the domestic scheduled passenger revenue) and online reservation services to include on their Web sites, at a point before the passenger selects a flight for purchase, specific information for each listed flight about its performance during the previous month;                 

(5) Adopting a new regulation, 14 CFR Part 259, that would also require certificated and commuter carriers that operate domestic scheduled passenger service using any aircraft with more than 30 passenger seats to publish complaint data on their Web sites; 

                    (6) Amending 14 CFR 234.4 and 234.11 to require carriers that report on-time performance to the Department pursuant to 14 CFR Part 234 (                    *i.e.*, certificated U.S. carriers that account for at least 1% of the domestic scheduled passenger revenue) and the largest foreign carriers to report on-time performance for international flights to and from the United States; and                 

(7) Adopting a new regulation that would require certificated and commuter carriers that operate domestic scheduled passenger service using any aircraft with more than 30 passenger seats to audit their adherence to their own customer service plans. 

Detailed discussions concerning each of these proposals are set forth in the November 20, 2007 ANPRM. 

In the “Regulatory Notices” section of the ANPRM the Department addressed a number of regulatory issues. Matters relating to Executive Order 13132 were addressed as follows: 

                        This Advance Notice of Proposed Rulemaking has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”).                         *This notice does not propose any regulation that*                         (1) has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government, (2) imposes substantial direct compliance costs on State and local governments, or (3)                         *preempts State law.*                         Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.                    

72 FR 65236 (emphasis supplied). After further review, including initial review of comments submitted to the Department in response to the ANPRM, the Department has concluded that our prior statement addressing preemption of State regulations concerning air carrier operations has been misconstrued. 

Executive Order 13132 sets forth certain requirements for Federal agencies when they are “taking action that preempts State law.” Promulgation of a Final Rule incorporating the Department's proposals on enhancing airline passenger protections as set forth in the ANPRM, or other proposals addressing the matters giving rise to the ANPRM, would not “tak[e] action that preempts State law” because such State or local laws are already preempted under the Airline Deregulation Act (ADA), which provides at 49 U.S.C. 41713(b)(4)(A), that “a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.” The Supreme Court has consistently interpreted the ADA broadly so as to preclude any regulation of airline services other than by the Federal government.                     *See Morales*      ( print page 11844)                        v.                     *Trans World Airlines, Inc.,*                     504 U.S. 374, 378 (1992);                     *American Airlines, Inc.*                     v.                     *Wolens,*                     5113 U.S. 219 (1995). This broad view has most recently been re-affirmed in                     *Rowe*                     v.                     *New Hampshire Motor Transport Assoc.,*                     _S. Ct. _, 2008 WL 440686, U.S., February 20, 2008 (No. 06-457).                 

For the foregoing reason, any State or local rules addressing, or related to, the services offered by air carriers are already preempted under the ADA. In addition, if the proposed rule addressed in the ANPRM is finalized, it is likely that the final rule would also separately preempt any such State or local regulations under other provisions of law. We need not further address any other grounds for preemption, particularly at the ANPRM stage, since, as explained above, States and localities are already precluded from regulating in this area. 

Issued this 3rd day of March, 2008, at Washington, DC. 

Michael W. Reynolds, 

Acting Assistant Secretary for Aviation and International Affairs. 

[FR Doc. 08-969 Filed 3-3-08; 11:13 pm] 

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